PEOPLE v. LOVETT (2004)

 Defendant appeals from a judgment convicting him upon his plea of guilty of reckless endangerment in the first degree (Penal Law § 120.25) and criminal possession of a weapon in the third degree (§ 265.02[1] ).   Contrary to the contention of defendant, his waiver of the right to appeal entered as part of the plea agreement was voluntary, knowing, and intelligent (see People v. Seaberg, 74 N.Y.2d 1, 11, 543 N.Y.S.2d 968, 541 N.E.2d 1022;  People v. Summers [Appeal No. 2], 242 A.D.2d 869, 662 N.Y.S.2d 912, lv. denied 91 N.Y.2d 881, 668 N.Y.S.2d 580, 691 N.E.2d 652).  “The challenge by defendant to the amount of restitution is not foreclosed by his waiver of the right to appeal because the amount of restitution was not included in the terms of the plea agreement” (People v. Sweeney, 4 A.D.3d 769, 770, 771 N.Y.S.2d 760).   Defendant failed to preserve that challenge for our review, however, by failing to request a hearing or to object to the amount of restitution (see People v. Horne, 97 N.Y.2d 404, 414 n. 3, 740 N.Y.S.2d 675, 767 N.E.2d 132;  People v. McCorkle, 298 A.D.2d 848, 848-849, 747 N.Y.S.2d 819, lv. denied 99 N.Y.2d 561, 754 N.Y.S.2d 213, 784 N.E.2d 86).   The further contention of defendant that County Court erred in imposing an enhanced sentence by ordering him to pay restitution is not preserved for our review because defendant failed to object to the enhanced sentence or to move to withdraw the plea on that ground (see People v. Holmes, 306 A.D.2d 889, 760 N.Y.S.2d 920, lv. denied 100 N.Y.2d 621, 767 N.Y.S.2d 404, 799 N.E.2d 627;  People v. Leonard, 306 A.D.2d 940, 761 N.Y.S.2d 916;  see also People v. Sundown, 305 A.D.2d 1075, 758 N.Y.S.2d 736).   Finally, the general waiver by defendant of the right to appeal encompasses his challenge to the severity of the sentence (see People v. Hidalgo, 91 N.Y.2d 733, 737, 675 N.Y.S.2d 327, 698 N.E.2d 46).

It is hereby ORDERED that the judgment so appealed from be and the same hereby is unanimously affirmed.

MEMORANDUM: